The Durable Power of Attorney for Finances is a document which permits an individual to name a trusted family member, friend, or advisor to act as an “Agent,” who can conduct financial transactions on their behalf if they are temporarily—or permanently, incapacitated. This form is an important part of an “estate plan,” even though it is only functional in life, and is no longer valid after death. Many people don’t realize that a Power of Attorney can be revoked or changed at any time-- its terms are not permanent.
 
For people who travel, have a chronic illness, are raising small children, or are caring for an aging parent, this document is critical to assuring that the bills are paid, insurance coverage is maintained, and assets are safeguarded until a return home or recovery is complete. And, for families who are struggling with the onset of dementia or a progressive illness, a current Power of Attorney must be executed by the ailing person before they lose the capacity to assign the duty to assist them to someone they know and trust. Notably, recent changes in Georgia law now permit an Agent acting under a Power of Attorney for Finances to set up a trust, or to move assets into an existing one. Powers of attorney executed in our state prior to 2010 will not contain this feature.

A valid, “durable” Power of Attorney document must be validly witnessed and notarized “statutory form” to be effective. A statutory form means that the document contains the content recognized by state law as valid. Often families believe that a personal letter or a hand-filled out form is adequate to assume the responsibility to conduct their loved one’s affairs. It is not. And, the witnesses used cannot be the same people as the named “Agents” in the document. Banks and other financial institutions are increasingly cautious about accepting powers of attorney documents, so it is important to make sure the document is in good order, and that it is presented at financial institutions to be filed once it is signed. Sometimes, a Power of Attorney document contains specific language permitting the Agent to act only under certain circumstances, or only for a certain transactions. The increasingly complicated (and regulated) nature of the financial world has resulted in a document which, in Georgia, is now six pages long.

The responsibilities given to a financial Agent are sweeping. This can be alarming, especially for senior citizens who are fearful of losing their independence. However, without this form in place, family members cannot help them when the time comes. Older folks frequently share stories about unscrupulous agents who have “wiped someone out” using the form, so they are resistant about putting the power in place. Encouraging the senior citizen to have a completely private chat with a patient and understanding attorney can often have a calming result. If certain family members or advisors are not worthy Agents, they are not named.
 
What about Assessing the Capacity to Sign Powers Documents, if Mom or Dad have begun to “get a little fuzzy”…? Only trained physicians and their staffs can conduct testing for dementia in its many forms. However, many Trusts and Estates (and Elder Care) attorneys are well-versed in the legal standard required to determine if a person has the capacity to express what property they own, and to whom they wish to entrust the safekeeping of that property.
 
Our firm prides itself in the willingness to work with families, often by meeting with the senior citizen at home or at their caretaking facility. Individuals who are struggling with memory loss often respond best when in familiar surroundings, and when the attorney gets to know their points of pride, and then gently introduces the legal topics (and the paperwork) only after the aging (or forgetful) client is relaxed and enjoying the visit.